Holmes v. Cameron

Citations

• 267 Pa. 90
• 110 A. 81
• 1920 Pa. LEXIS 814

Syllabus

<p>Contract — Sale—“Noils”—Sample—Mistake—Mutual mistake — ; Absence of consideration — Acts of April 18,1887, P. L. 21, and May 19, 1915, P. L. 548 — Impossibility of performance — Tender—Case for jury.</p> <p>1. In the sale of goods by sample there is an implied warranty that the bulk shall correspond with the sample in quality, under the Acts of April 13, 1887, P. L. 21, and May 19, 1915, P. L. 543. The buyer is entitled to goods corresponding to the sample, and the fact that the seller did not have them in stock, is no excuse, where there is no allegation or proof that he could not have procured them; neither is it an excuse that the seller made a mistake in the sample.</p> <p>2. A mistake of one of the parties only in the expression of his agreement or as to the subject-matter, not known to the other, does not affect its binding force, and is no ground for its rescission even in equity, unless it is such a mistake as to show that there is a complete difference in substance between what is supposed to be and what is taken, so as to constitute an absence of consideration.</p> <p>3. Where there is a mutual mistake, that is, where both parties are mistaken, for example, as to the subject of a contract, equity will grant relief; but the misconception which avoids a contract is necessarily a mutual one, and of a fact which entered into the contemplation of both parties as a condition of the assent. If the purchaser was not mistaken, nor guilty of fraud, he cannot be deprived of the benefit of his contract.</p> <p>4. A contract to perform an impossible thing may be void, but it must be impossibility, not difficulty, that will excuse performance of a contract. The fact that it would involve a hardship is no excuse.</p> <p>5. Where the subject-matter of a contract of sale is a certain quantity of noils, a by-product of wool, as per sample “No. 492,” pny noils corresponding to the sample will satisfy the contract, inasmuch as “No. 492” is a sample number, and does not co